Spring 2017 Papers/Seminar Presentations

It won’t come as a surprise that I like to write on legal topics.  And between 1,500 page rulebooks, 500 word posts and 140 character tweets, I also usually crank out a number of papers on various legal topics during the year.

The State Bar and my colleagues were kind enough to give me a pass on speaking and writing last spring when I was on the ballot for State Bar president-elect, but this spring I am back on the speaker lineup at a number of seminars in the coming months – often with new and interesting subjects.

I can’t promise subscribers can get self study for reading my papers as I start posting them here in the coming weeks (you can if you watch the presentations through the TexasBarCLE website, incidentally), but I can promise that they’ll help with that nagging insomnia problem you’ve been having.

They are as follows, with copresenters or panelists noted.  As always, all are subject to the trial calendar not blowing up:

 February 1IPO Chat Channel

Waiting for Heartland: Venue Tactics Until the U.S. Supreme Court Decision
Wednesday, 1 February, 2:00pm-3:00pm ET

Speakers – Jeffrey Bragalone, Bragalone Conroy PC; Colette Reiner Mayer, Morrison & Foerster LLP; Michael Smith, Siebman, Burg, Phillips & Smith LLP

Hmm.  Not much interest in this one, I don’t imagine.

 February 3Smith County Bar Association Federal Court Practice seminar (two topics)

Federal & Local Civil Procedure Update

Moderator:  Ron Schoenbrun – Panelists:  Michael Smith, Judge Rodney Gilstrap, Wes Hill, Judge Trey Schroeder, Law Clerks

Conflicts, Disqualification, Lateral Hires, & Other Ethics Issues

Moderator:  Michael Smith – Panelist:  Wes Hill, Ron Schoenbrun, Judge Nicole Mitchell, Mike Jones

Great set of panels for the Tyler-area bar.  I’ll be speaking as part of one, and moderating another.

 May 25 – TexasBarCLE Federal Court Practice 2017

Trial Procedure

I’ve done this paper three years, including co-presenting with Magistrate Judge Nicole Mitchell of Tyler and Magistrate Judge Roy Payne of Marshall who was co-author of the original paper back in 2013.  I think I’m going solo this year, but I’m not absolutely sure about that yet.  It’s in Austin this year, which broadens the potential pool of co-presenters.

 July 19-21; August 16-18; October 25-27 – TexasBarCLE 40th Annual Advanced Civil Trial Law Course

Venue and Jurisdiction: Where Does the Case Belong?

Michael C. Smith; David Lopez, Pulman, Capuccio, Pullen, Benson & Jones, LLP

Now this sounds like fun.  Where can you file, where should you file, and what might happen after you file?  Might use the Defendant Trade Secrets Act and the Texas Trade Secrets Act to show how the filing decision can be way more complicated that you learned in law school.

 July 20-21 – TexasBarCLE Advanced Patent Litigation

Post-trial Motions in Patent Cases

Oh yeah – JMOLs.  My favorite, favorite motion in patent cases at one of my favorite locations.  The slides are going to be epic.  People may even stay awake.  (Yes, I see the dates overlap with the San Antonio ACP session, but I will make it work.  The view shown in the photo is a poor substitute for the original).

Summary judgment granted in part in age discrimination case

Depending on the facts involved, a plaintiff asserting unlawful discrimination can allege an unfavorable action (termination, failure to promote, etc.), retaliation and harassment.  In this case the plaintiff claimed all three, and Defendant sought summary judgment as to all three.  In his report and recommendation on the motion, attached, Judge Payne recommended that it be granted as to two of the claims, and denied as to the third, writing that 

State Bar of Texas Friday (Legislative) Update

As readers from Texas know, the Texas Legislature is now in session through the end of May.  For non-Texans, we have a part-time legislature that meets every other year for 140 days (absent special sessions), so local legislative activity is compressed into a compressed, hell-for-leather spring marathon in odd-numbered years.

This year is more important than most for Texas lawyers, with  the State Bar up for its periodic “Sunset” review, which requires the Legislature to reauthorize the Bar before it adjourns sine die.  So in addition to the thousands of other bills that will be (or have already been) filed, there’s that to watch.

To assist lawyers in monitoring the progress of legislation of interest to Texas lawyers the State Bar sends out updates on Friday.  It reports on what’s happening in general, as to Sunset, and as to the legislative package that the Bar’s board of directors approved supporting.  That program includes proposals from five State Bar sections: Construction Law, Family Law, LGBT Law, Poverty Law, and Real Estate, Probate, and Trust Law. A chart outlining each proposal can be found here and will be updated to include bill numbers as they become available.

You can subscribe to the weekly updates here.  It’s a good way of seeing what’s happening, although you should also be corresponding with your practice area groups to get more detailed information on how specific legislation will affect your area of practice.  It is important to remember that the State Bar is prohibited from lobbying on most issues, so other organizations – the Texas Association of Defense Counsel, the Texas Family Law Foundation, the Texas Trial Lawyers Association, and Tex-ABOTA are several that come to mind – may be better resources for explaining in clear (and likely profane as sine die approaches) language.

The State Bar’s sections can also take positions on legislation in certain limited circumstances, and you may see that as well.  I chaired the Litigation Section in an off-legislative year so we didn’t take positions during my term, but we did seek and receive permission to take a position on rule changes that were pending before the Texas Supreme Court, and that section has taken positions opposing specific legislation in at least the last two or three sessions.

Last session the Legislature passed a bill dealing with bad faith demand letters asserting patent infringement, (which I’ll summarize in a forthcoming post) so it can pass laws that affect patent litigation, and sometimes does it on purpose.  So it’s always worth keeping an eye on what the Lege is up to.

Maurine Kariel Plettman – 1924-2017

People who come to Marshall to try cases in our courts often ask me what kind of a place it is.  The best I can tell them is something Joe Goulden said to fellow Marshall boy Bill Moyers in his Emmy-winning special Marshall, Texas, Marshall, Texas in 1983, which is that it was – and is – a place where people knew when you were sick, and they cared when you died.  (If you are a historian you’ll know that he borrowed that phrase from someone else, and if you’re a good historian, you’ll know that the former president he borrowed it from married a Marshall girl).

Since our law firm moved into the old  Hub Shoe Store building in downtown Marshall in 2010 we have become sort of an adopted grandchild of the Kariel family, which operated the shoe store from 1897 to 2001  through three generations before graciously allowing me to write its next chapter in 2009.  We celebrated Audrey and Louis Kariel’s 60th anniversary during the renovations in 2010, worked to put up a historical marker recognizing the store and family in 2012, and are a regular stop for visiting family and friends wanting to see how the place is doing after the much-publicized renovations.  In fact Friday we hosted the publisher of the local paper from the early 1980’s and his wife who were back in town to visit – who else – Louis and Audrey.

Thus it is with sorrow that we learned of the passing of Louis’ sister Maurine Kariel Plettman last week at her home in Beaumont.  Maurine was born Sept. 21, 1924, in Marshall to Adele Stein Kariel and Louis Kariel, Sr., making her the niece of the first owner of the Hub, daughter of the second and sister of the third).  Maurine graduated from Marshall High School as valedictorian, and went on to graduate with honors from the University of Texas, where she was a member of Phi Beta Kappa, Americas oldest academic honor society.

When Maurine’s future husband, Stanley Plettman, later an attorney at Beaumont’s Orgain, Bell & Tucker, asked her to marry him, he was overseas. Stanley deputized her brother, Louis, to put the ring on her finger. Her obituary in last week’s Beaumont paper noted that both her brother and her father “owned the Hub Shoe Store in Marshall.”  It’s the kind of fact that still matters around here.

Our sympathies and our prayers are with the Kariel and Plettman families during their time of loss.

Ever wonder which judges have construed the most claim terms?

According to Docket Navigator, at present it is U.S. Magistrate Judge Roy Payne (E.D. Tex.), with 4,176 terms.  The judges in the top twelve are:
1. Judge Roy Payne (E.D. Tex) (4176 terms)
2. Judge Leonard Davis (E.D. Tex) (3047 terms)
3. Judge Richard Andrews (D. Del) (2782 terms)
4. Judge Gregory Sleet (D. Del) (2349 terms)
5. Judge T. John Ward (E.D. Tex) (2300 terms)
6. Judge Leonard Stark (D. Del) (2263 terms)
7. Judge John Love (E.D. Tex) (2247 terms)
8. Judge J. Rodney Gilstrap (E.D. Tex) (2165 terms)
9, Judge Charles Everingham (E.D. Tex) (2094 terms)
10. Judge Rudi M. Brewster (S.D. Cal) (1770 terms)
11. Judge Marilyn Huff (S.D. Cal) (1653 terms)
12. Judge David Folsom (E.D. Tex) (1438 terms )
13. Judge Sue Robinson (D. Del) (1436 terms)

Transferring Venue: How Long Is This Gonna Take?

Good post on Docket Navigator’s Docket Report at http://docketreport.blogspot.com/2017/01/transferring-venue-how-long-is-this.html about relative time to trial.

The post goes through eight years on data on motions to transfer venue and sets the relative time for grants and denials in different courts.  The grant rate was almost evenly split at 1,079 granted and 974 denied during that time period.

The report helpfully compares time from filing to resolution, and among districts with a large numbers of motions EDTX beats Delaware by barely a day on orders denying motions to transfer at 183.2 to 184.5.  NYND is way out in front on this one, taking an average of 283.7 days, but it only denied ten motions in eight years, versus 377 for EDTX and 107 for DED.  As far as denials, in EDTX they took on average 219.4 days, compared to Delaware’s 199.5.

The shortest times were in VAED and CACD, which took on average 61 days to grant a motion and 51.7 days to deny one, respectively, which brings up an interesting point.  How do some courts rule on these motions so quickly?

Part of it is a smaller number of motions, but there is a different factor that I believe is overlooked, and that is that the law applicable to motions to transfer is no longer the same across the circuits. The eight year window is a helpful one, as it approximately tracks from the Fifth Circuit’s en banc decision in In re Volkswagen II in late 2008 in which that court eliminated the plaintiff’s choice of forum as a separate consideration in the transfer analysis and lowered the standard for mandamus relief of venue rulings.  This created a split between the Fifth Circuit and all other federal regional circuits on these two key points, and required district courts in the Fifth Circuit hearing patent cases to issue more detailed opinions when ruling on transfer issues because the revised standard made many motions much closer calls, and subjected the rulings to more searching review.

Here’s an interesting idea for some enterprising student of the law.  Compare the time to venue rulings: (1) before the standard changed in In re VW in 2008; (2) from 2008 to the AIA in 2011; then (3) after the AIA, which which required patent cases (and thus in most cases venue motions) to be filed on a “per defendant” basis.  I know anecdotally I was seeing approximately six times as many initial motions (transfer/dismiss) after the AIA because defendants could no longer file consolidated motions, and I suspect that had an effect on the time to ruling.

The problem there is that the AIA coincided very closely with the EDTX having one, then two and now three judicial vacancies out of the eight authorized judgeships – most of which were in the ranks of the judges who had opted in to hear patent cases under Congress’ Patent Pilot Courts program.  So assuming that there was a change in the time to ruling, I wonder which factor played more of a role – more motions, or fewer judges?

Orders Requiring Disclosure of Focus Group Information: A Brief History

Dennis Crouch just posted on Patently-O about an order from Magistrate Judge Love requiring parties to notify each other (with other information in camera) if they conduct a focus group.  He correctly notes that it’s an unusual order, but the language is familiar, and I think there’s a reason why we haven’t seen such an order in a case before, which goes back to where these type of orders originated. Several years ago 

2017 O’Connor’s Federal Rules * Civil Trials

Always a good day when we get the new year’s O’Connor’s Federal rulebook in.  Especially when it’s a blue cover year.  I have been editing this publication for 19 years now, but it’s always a thrill to actually see the new edition.

That having been said, I have already gotten one complaint about how thick the thing is this year, but that’s the unavoidable result of federal courts and Congress continuing to churn out caselaw and laws.  In fairness, there were no new laws from Congress affecting civil litigation in the past year, but lots of caselaw, including cases applying the extensive December 2015 amendments to the FRCPs which, along other things, substantially revised the scope of discovery in federal court.

And, finally, the new edition has a current photo of me on the back cover – I got tired of trying to convince people that the young, skinny guy on the back cover was me.  So no, that’s not my dad – it’s just not 2005 any longer.

The book includes 929 pages of commentaries, followed by annotated FRCP, FRE, FRAP, MDL rules, relevant advisory committee notes and 28 USC sections.  And for copies sold in Texas, the book includes the local rules for all four Texas federal courts, including EDTX.  It doesn’t have local patent rules or judges’ standing  orders or forms, but those are available on the EDTX website.

I’ve been using O’Connor’s since the state book came out in 1991 – and was immediately banned for use in Practice Court at Baylor because it made finding answers to Prof. Muldrow’s questions on civil procedure too easy.  In fact that first edition is still on my desk today.  Although strictly speaking it’s not there for its legal content, it is a reminder of how attached some of us get to our rulebooks.  I could hardly be more biased about how useful the books are, but I do think the federal book is a really good tool for those that spend a lot of time in federal court.

The book is available through O’Connor’s at https://www.oconnors.com/store/products/details/oconnors-federal-rules-civil-trials-2017.

Plaintiff’s Motion for Summary Judgment Granted in Part in Contract/Fraud Case

This is a fight between the Zhangs and the Monroes over East Texas salt mining centering on the world-famous Grand Saline Salt Dome. It appears that things went south with respect to Ms. Zhang’s investment in the activity in the Monroe Salt Mine, resulting in a breach of contract and fraud suit. As set forth in the opinion, Judge Love denied the motion at to the contract claims, noting that Defendants failed to cite to summary judgment evidence in their response, but Plaintiffs did not file a reply brief rebutting Defendants’ affirmative defenses, either.  As for the fraud, negligent misrepresentations, and statutory fraud in stock transactions claims, Judge Love found that the Plaintiff had met her burden of proof, and the Defendants hadn’t established a genuine issue of material fact, and thus granted the motion as to these claims.  The Court also found that it was appropriate to pierce the corporate veil, thus submitting the individual defendants to individual liability for acts committed on behalf of CMA. Zhang v Monroe

Motion to Submit Additional Evidence Denied

This motion arises out a special education due process hearing request with the Texas Education Agency.  The plaintiff’s request was heard and denied by a Special Education Hearing Officer at TEA, and plaintiff appealed.  Ten months after filing its appeal in federal court, the plaintiff  filed a Motion to Submit Additional Evidence to the Record, seeking to introduce twenty-two exhibits which plaintiff asserts were denied admission at the administrative due process hearing, as well as evidence not available at the time of the administrative due process hearing, including recent progress reports and evaluations provided by private therapy providers. After reviewing the standards for such appeals and the evidence the Court is to consider, the Court denied the requests, explaining with respect to each of the requested categories why, as set forth in the attached opinion. E M v Lewisville Independent School District